The recent Eleventh Circuit opinion of Mark Duke v. Richard Allen, No. 09-16011, mentioned in my previous post, also shows how important it is for any criminal (or civil) trial attorney to properly preserve issues for subsequent review on appeal.  Perhaps if Mark Duke’s trial counsel had secured a ruling by the trial court as to whether or not the record would reflect that the prosecutor had pointed to the defendant during the prosecutor’s closing argument, the appeal could have been decided differently.

Florida appellate courts also adhere to the principal that issues not raised or preserved in the lower court are generally waived on appeal.  Appellate review of an issue in a criminal case may be precluded if counsel fails to assert a contemporaneous objection, or if counsel fails to renew objections at key stages of the criminal proceedings.  Key stages of criminal proceedings include the discovery phase, pretrial motions, voir dire and jury selection, opening statements, calling and examination of witnesses, admission of evidence, motions made during the course of the trial, closing statements, jury instructions, post trial motions, and sentencing.  If counsel fails to timely assert proper objections, or fails to renew such objections, or fails to secure a ruling on those objections, the appellate court may be precluded from considering the issue on appeal.

Discussions of different aspects of the preservation doctrine can be found in cases such as Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925 (Fla. 2005), revised on reh’g, (Fla. 2005); Melbourne v. State, 679 So. 2d 759 (Fla. 1996); Castor v. State, 365 So. 2d 701 (Fla. 1978); Castaneda ex. rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So. 2d 1087 (Fla. 4th DCA 2004); Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 3d DCA 1989); City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989); Franklin v. State, 965 So. 2d 79 (Fla. 2007); and, Hamilton v. R.L. Best Intern., 996 So. 2d 233 (Fla. 1st DCA 2008).